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2016 DIGILAW 862 (ORI)

Rakhal @ Rakhal Chandra Murmu v. Pama Murmu

2016-09-23

A.K.RATH

body2016
JUDGMENT : A.K. RATH, J. 1. Defendants 1 to 3 are appellants against an affirming decision. 2. To appreciate the inter se disputes, it would be prudent to furnish the genealogy, which is as follows:- Gobinda @ Gopal Majhi Mangal Pama (Plff) Budhia = Jhana (D-3) Bhaja (D-4) Samari (D-5) Rakhal (D-1) Sitaram (D-2) 3. Respondent no. 1 as plaintiff instituted a suit for declaration of title and partition of Schedule-B property. The case of the plaintiff is that the parties to the suit are ‘Santal’ by caste and governed by Old Mitakshara School of Hindu Law. The Hindu Succession Act, 1956 does not apply to them. Gobinda @ Gopal Majhi was the common ancestor of the parties. He died leaving behind him four sons, namely, Mangal, Budhia, Bhaja and Samari. Mangal and his brothers had purchased Ac.8.29 decimals of land appertaining to Hal Katha No. 54 of Village Chunat. The said land was recorded in their names in the current settlement. Since dissensions cropped up in the family, Budhia expressed his intention to remain separately. The lands mentioned in Schedule-B of the plaint were partitioned between four brothers amicably. After partition, the parties were in possession of lands allotted to them. The land described in Schedule-C of the plaint and Ac.0.30 decimals of land sold to defendant No. 6 had been allotted to the share of Mangal. Mangal was in possession of the land separately as the owner thereof. Mangal had sold Ac.0.30 decimals of land to defendant No. 6. After death of Budhia, his sons and widow, defendants 1 to 3 remained in possession of the lands allotted to the share of Budhia and her husband. She and her daughter Paunra inherited and possessed Schedule-C land. Her daughter died about 4 years back. The defendant No. 6 is in possession of the land to him by her husband. While the matter stood thus, she approached the defendant Nos. 1 and 4 for preparation of separate documents in her name in respect of the suit land. They turned a deafer, whereafter she filed the suit. 4. Pursuant to issuance of summons, defendants 1 to 5 entered appearance and filed a joint written statement denying the assertions made in the plaint. The defendants did not dispute about purchase of Schedule-B land by Mangal and his brothers. They turned a deafer, whereafter she filed the suit. 4. Pursuant to issuance of summons, defendants 1 to 5 entered appearance and filed a joint written statement denying the assertions made in the plaint. The defendants did not dispute about purchase of Schedule-B land by Mangal and his brothers. The specific case of the defendants is that there was never any partition of Schedule-B property between the husband of the plaintiff and his three brothers. They are schedule tribes and governed by the Old Hindu Law. The plaintiff, who is a female, has no right, title, interest or possession over the suit land. It was further stated that Mangal had orally sold Ac.0.50 decimals of land out of Hal Plot No. 212 of holding No. 54 of Mouza-Chuhat for a consideration of Rs.90/- to defendant No. 5 and delivered possession to defendant No. 5 on 1.1.1975. Again on 1.1.76, Mangal sold Ac.0.35 decimals of land of Plot No. 65 of Holding No. 54 for a consideration of Rs.85/- orally and delivered possession of the same to defendant no. 5. The plaintiff resides in Village-Chaksuliapada. It is further stated that Mangal had undertaken to register the land purchased by the defendant no. 5, but then before such registration, he expired. Defendant no.5 is in peaceful possession of the land purchased from Mangal. 5. The defendant no. 6 filed a separate written statement. His case is that he has purchased Ac.0.30 decimals and 75 Barga-Kadies of lands out of A.1.23 decimals of land of Plot No. 215 of Holding No. 54 of Mouza-Chuhat by means of registered sale deed No. 2671 dated 22.06.1987. After purchase, the land has been recorded in his name under Mutation Holding No. 99/11. He is a bona fide purchaser. He is exercising all acts of ownership over the same. 6. On the inter se pleadings of the parties, learned trial court framed six issues, which are as follows:- “1. Is the suit maintainable? 2. Is the suit bad for mis-joinder and non-joinder of parties? 3. Whether the plaintiff is the owner of C-Schedule land? 4. Whether B-Schedule land is liable to be partitioned between the parties, if so, what shared they are entitled to? 5. Any other relief the plaintiff is entitled to? 6. Is the suit maintainable? 2. Is the suit bad for mis-joinder and non-joinder of parties? 3. Whether the plaintiff is the owner of C-Schedule land? 4. Whether B-Schedule land is liable to be partitioned between the parties, if so, what shared they are entitled to? 5. Any other relief the plaintiff is entitled to? 6. Whether there was partition of the suit land amongst the four brothers and if Schedule-C land along with other land sold to defendant no.6 fell to the share of the deceased husband of plaintiff? 7. Whether defendant no. 5 had purchased A0.85 decimals of lands out of C-Schedule land and possessing the same?” 7. To substantiate the case, the plaintiff had examined three witnesses and on his behalf, one document was exhibited. Defendants had examined three witnesses and on their behalf, three documents were exhibited. 8. The learned trial court decreed the suit. Assailing the judgment and decree, the defendants unsuccessfully challenged the judgment and decree before the learned appellate court, which was eventually dismissed. 9. Criticising the judgment, Mr. R.K. Mohanty on behalf of Mr. B.P. Satpathy learned counsel for the appellant submits that the parties are Scheduled Tribes and, as such, Hindu Succession Act does not apply to them. The plaintiff has no locus standi to institute the suit. In the absence of any evidence on record, the learned courts below have committed manifest illegality in directing the partition of Schedule-B land. He relies on the decisions in the case of Dhanurjaya Kirsani v. Sukra Kirsani and Others, 1986 (II) OLR 399, Kedar Prasad Gupta v. State, 1986 (II) OLR 403, Smt. Anusuya Rath and Others v. State of Orissa and Another, 1988 (II) OLR 410, Satyabhama Pandey v. Bhagirathi Jaipuria and Others, 1988 (II) OLR 420, Smt. Pushpa Devi v. The Commissioner of Income-Tax, New Delhi, AIR 1977 SC 2230 , Hiralal Mallick v. State of Bihar, AIR 1977 SC 2236 , Khedu Hota, after him Smt. Brundabati Hota and Others v. Commissioner of Consolidation, Orissa and Others, (1992) 73 CLT 275. 10. While answering issue nos. 3 and 6, the learned appellate court held that Scheduled-B land was purchased by Mangal, husband of the plaintiff, Budhia, the father of defendant Nos. 1 and 2, Bhaja Murmu and Samari Majhi, Defendant Nos. 4 and 5 jointly. An area of Ac.0.30 dec. 10. While answering issue nos. 3 and 6, the learned appellate court held that Scheduled-B land was purchased by Mangal, husband of the plaintiff, Budhia, the father of defendant Nos. 1 and 2, Bhaja Murmu and Samari Majhi, Defendant Nos. 4 and 5 jointly. An area of Ac.0.30 dec. and 75 Barga-Kadis of land out of Plot No. 215 was sold by Mangal to defendant No. 6 by means of a registered sale deed no. 2671, dated 22.06.87, Ext.B for a consideration of Rs.1500/-. The said land has been recorded in the name of the defendant No. 6 vide Ext.C. Further, the land purchased by Mangal and his brothers, i.e., Scheduled-B land has been recorded in their names jointly in the current settlement under Holding No. 54 vide Ext.1. 11. So far as the question of prior partition between the husband of the plaintiff and his brothers, on a thread bare analysis of the evidence on record as well as pleadings, learned appellate court concurred with the findings of the courts below and held that there was a partition between Mangal husband of the plaintiff, defendants 4 and 5 and father of defendants 1 and 2 about 30 years back. In the said partition, the suit land and the land sold to defendant no. 6 as per Ext. B were allotted to share of Mangal. After death of Mangal, plaintiff is in possession of the suit land. Learned appellate court further held that the defendant no.5 has failed to prove that he has purchased Ac.0.85 decimals of land from Mangal and concurred with the findings of the court below and accordingly answered issue no. 7. 12. The decisions cited by Mr. Mohanty are clearly distinguishable on facts. In Dhanurjaya Kirsani (supra), this Court held that unless any custom to the contrary is proved, the original text of Hindu Law also applies to the tribal people living in the interior parts of the country whose way of life, their habits and culture have been influenced by the Aryans and their missionaries through centuries and who in a sense have embraced and professed Hinduism. In Smt. Anusuya Rath (supra), the Full Bench of this Court had the occasion to consider the definition of ‘Family’ appearing in Section 37(b) of the Orissa Land Reforms Act. In Smt. Anusuya Rath (supra), the Full Bench of this Court had the occasion to consider the definition of ‘Family’ appearing in Section 37(b) of the Orissa Land Reforms Act. In Smt. Pushpa Devi (supra), the apex Court came to hold that a Hindu female not being a coparcener cannot blend her separate property with joint family property. In Khedu Hota (supra), a Division Bench of this Court had the occasion to consider the provision of Women’s Right to Property Act, 1937. 13. A bare reading of the said decision, however, shows that there is a significant difference in the factual matrix in which the said case arose for consideration. The reliance upon the aforesaid decisions, therefore, are of no assistance to the appellant. 14. Both the courts held that there was a partition between Mangal, husband of the plaintiff and his brothers. It was further held that defendant has not successfully proved the oral sale gift. These are essentially a finding of facts. Thus after death of Mangal, the plaintiff being the sole surviving heir succeeds to the property of Mangal. 15. There is no perversity or illegality in the findings of the learned lower appellate court. The second appeal does not involve any substantial question of law and the same is accordingly dismissed.